Catalangate's legal strategy: lawsuits against NSO, CNI, National Police and Guardia Civil

BarcelonaThe week was marked by the political effects of Catalangate, such as ERC's refusal to support the Spanish government's decree on the consequences of the war in Ukraine. But there is another aspect that will also gain protagonism in the medium term: the court battle. This Friday, Òmnium has brought together four lawyers, some of whom were victim of surveillance themselves, at the University of Barcelona, in order to discuss the legal strategy for the lawsuits. Although they have not revealed all the details, they indicated who they would be directed against: Israeli spyware developer NSO; the Spanish National Intelligence Centre (CNI); the Guardia Civil; and the Spanish National Police. With this lawsuit they intend to clarify who made an "illegal" use of Pegasus, since they have insisted that no judge could have authorised spying on over sixty people, including lawyers, and if we had it would be a perversion of the course of justice.

"The debate is not whether or not a judge authorised the spying, but whether there is a justification for violating fundamental rights with the sole argument of protecting the State from the independence movement," said lawyer Benet Salellas, who shared the stage with Gonzalo Boye, Andreu Van den Eynde and Antoni Abad. The lawyers recalled that this programme is sold, in theory, to fight against terrorism and organised crime and that it is very difficult that in European courts believe the independence movement poses a similar danger for the Spanish government, Boye said. "In Europe they will not understand Minister Margarita Robles's arguments, they will not understand that a democracy needed to spy" on a pro-independence movement.

Therefore, lawsuits will be directed against the company that markets Pegasus, but also against those who have made use of its services. Van den Eynde has assumed that it was the CNI because several sources pointed out that it is an NSO client, but he admitted that it is the investigation which will have to establish who used this tool against the independence movement and what was done with the information obtained. That is, accusing NSO as "co-perpetrator" since their servers received the information which they then passed on to their clients, they intend to find out who is behind the espionage.

From the lawyers' explanations it can be deduced that there will not be a single collective lawsuit, but multiple lawsuits focusing on different aspects. Andreu Van den Eynde has opted to take advantage of the case already opened in a Barcelona court over the spying on former Speaker Roger Torrent and the ERC Barcelona mayoral candidate Ernest Maragall to bring cases that have affected people within the State. "The judge and the prosecutor see evidence of crime," he remarked. "Now we have a political space which has been victim of proven mass surveillance. This procedure should enter a new phase," he declared.

On the other hand, Boye will seek individual lawsuits abroad, taking into account the specific circumstances of each case. Some of the victims live in other states and some have had their phones hacked more often than others. He will also submit the documents to cases being heard before the Court of Justice of the European Union (CJEU). "The first legal consequences will be felt outside the State, although there may be judges here who may think that a crime has been committed," he pointed out. In this sense, he has remarked that he was spied on – as well as Van den Eynde – and that they are representing clients in cases against the Spanish State at the CJEU. "We have immunity with regards to the defence that we are carrying out before the CJEU and this has been violated by the Kingdom of Spain," he said, emphasising that the opposing party in these cases, Spain, has been able to spy on them with all that entails for the right to defend oneself in court. "There is a double violation", he emphasised, making it clear that he will provide the documents to the CJEU.

At this point, Salellas has recalled that the Spanish case law on this issue is very clear: the Supreme Court disqualified Judge Baltasar Garzón for intercepting calls between defendants in the Gürtel case and their lawyers. The Court said it did not accept practices of "totalitarian states".